The Forum

By Kristen Thompson, Editor In Chief

On Thursday, October 18 the final round of the Judge Luther M. Swygert Memorial Moot Court Competition took place. The Neils Science Center Auditorium on the main campus was packed, all hoping to see some of the best oral arguments that VUSL has to offer and to get a glimpse of Supreme Court Justice Antonin Scalia doing what he does best. Accompanying Justice Scalia were Judge Daniel A. Manion of the U.S. Court of Appeals for the Seventh Circuit and Judge Rebecca R. Pallmeyer of the U.S. District Court for the Northern District of Illinois.

The first issue before the justices was: Does an ordinance regulating picketing that creates a 200-foot buffer zone around a funeral service violate the First Amendment rights of protestors? 3L Alissa Wetzel was first up, arguing for the Petitioners. Wetzel discussed the irreparable harm of the Petitioner who was unable to express himself in a public forum. The main part of the argument being that the ordinance was not narrowly tailored. Justice Scalia was the first judge to question Wetzel asking whether the ordinance was content-based. He then expressed that “a funeral is not a place to protest.”

Wetzel countered his point by explaining that it was the first impression of the court and that people have a special private benefit of their homes but not in a public forum. She argued that the City of Eastover allowed “good” speech but banned “bad” speech which is a direct violation of the First Amendment. Wetzel then brought up a case in which Justice Scalia wrote part of the opinion. Justice Scalia stated that he did not remember the case as the crowd laughed.

Wetzel went on to argue that the ordinance does not have a significant government interest under a heightened scrutiny standard. However, Justice Scalia stated that he believed picketing at a funeral is “sick” and it would be reasonable to want to restrict such speech. He also added that it seemed like a time, place, manner argument. Wetzel argued that when making a political statement, the location is part of the message. Scalia disagreed asking why “the backdrop of a message needs to be a mother’s son’s funeral?”

Judge Pallmeyer discussed the issue of “core political speech.” As Judge Manion asked whether the protestors were intending to show that the funeral was a punishment by God. Wetzel explained that it was not about sinful conduct, but aimed at America at large.

3L Andrew Lucas argued the issue for the Respondents. Lucas focused his argument on the funeral being a captive place in which the speech is invasive and therefore Intermediate Scrutiny should be used. Once again, Justice Scalia was the first to jump in and stated that the ordinance was not narrowly tailored. Lucas countered by stating that the 200 foot buffer was designed to protect an invasion of privacy. He explained that even if the protest was in support of the funeral, the protestors would still not be permitted to come closer than the 200 feet.

Judge Pallmeyer asked whether the ordinance included hand-billing and if so, why is it not content-based? Lucas argued that the ordinance does not restrict on viewpoint but it restricts part of the funeral. He also stated that the ordinance is closely related to the significant purpose of protecting people attending a funeral.

Justice Scalia made the point that picketing targeted at a home is not allowed, not picketing by a home. Therefore, why didn’t the city do something similar and ban picketing targeted at a funeral rather than ban picketing near a funeral. Lucas answered this by stating that the City feels it avoids the problem of figuring out who was protesting what by creating the 200 foot buffer. Justice Scalia replied stating that this argument broadens the ordinance rather than narrowing it. Lucas brought up that the protestors have alternative means and can do whatever they want past the 200 feet.

The second issue before the judges was: Are Alex Bauer’s First Amendment right violated when he is suspended from school for participating in a protest during school hours? 2L Jeffery Speights argued for the Petitioners explaining that it was unclear whether the funeral was a school-sponsored event. He pointed out that the school was not involved with the funeral; it just allowed students to leave to attend it. In support of that argument, Speights explained that no faculty members were there to supervise the students. He also argued that the Petitioner was protesting with the congregation of his church and the content of the protest was “core political speech.” The sign the Petitioner was holding stated, “Woe unto those who condone homosexual activity.”

Justice Scalia disagreed with Speights use of the term “core political speech” explaining that the speech in question was not core political speech. Speights argued that nonetheless, the school cannot silence speech just because it is disagreeable. Additionally, he argued that the principal of the school had no right to censor and suspend the Petitioner. Another point Speights brought up was that the protest did not create a disturbance of school using Tinker v. Des Moines to support his argument. Concluding by stating that the speech engaged in by the Petitioner was protected and was not expressed in a disruptive way.

2L Tamara Carnahan argued the issue for the Respondents stating that the school was being proactive and its reaction to the situation was not in violation of the Petitioner’s rights. Both Judge Manion and Justice Scalia were concerned with whether or not the funeral was associated with the school. Carnahan explained that the funeral took place during school hours, the students had to get permission from the school to attend, a convocation ceremony was scheduled and therefore the school was participating in the funeral.

Justice Scalia questioned whether a solemn requiem high mass would qualify as a school sponsored event. Carnahan answered by stating that there had been previous violent events in the school and the school was acting to protect the school. Judge Manion asked whether the Principal know of the Petitioner’s views before the funeral. Carnahan stated that the school felt justified in letting the students go to the funeral.

Speights reserved two minutes for rebuttal in which he made two points. First, he reiterated that the funeral was not a school function. Second, he stated that the City’s code was an unconstitutional violation of free speech, was not narrowly tailored and fails both strict and intermediate scrutiny.

After a brief recess in which the judges deliberated, all three judges ruled for the Respondents represented by Andrew Lucas and Tamara Carnahan. The Best Oralist award went to Tamara Carnahan. The judges then gave their observations about the arguments. Judge Pallmeyer said that each one of the participants did a good job advocating for the client and gave good, direct answers to the questions.

Judge Manion said he was impressed with everyone and their knowledge of the case and case law. He went on to say, “It is always better to know your opponent’s case better than the opponent.”

Justice Scalia stated, “You guys are ready, I have heard a lot of arguments on the Supreme Court and many are not as prepared or as good as you.” He also gave some tips, stressing to never display impatience or exasperation in questioning. “The only time you are not wasting your time is when you are answering a judge’s question,” he advised. Justice Scalia ended by stating, “Congratulations, all four of you will be excellent advocates.”

Other awards for the competition were: Best Brief—Dominic Buttitta.

This entry was posted on Saturday, November 10th, 2007 at 4:04 pm and is filed under Front Page, News.You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.